Mental Capacity Law in Contract and Property Matters

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By Jaime Lindsey and Benjamin O’Connell

Mental capacity law could impact all of us at some point in our lives. When a person’s decision-making capacity becomes impaired, it can lead to a best interests decision being taken on their behalf under the Mental Capacity Act 2005. A best interests decision could be taken by professionals caring for the individual, those with authority to do so such as Deputies, or the Court of Protection (CoP). While health and welfare decisions in mental capacity cases have been increasingly researched, the jurisdiction relating to property and affairs has had much less scrutiny, despite it making up a significant proportion of the CoP’s workload.

Given this gap in focus, the University of Essex School of Law and Human Rights Centre are hosting a hybrid event on 5 October 2022 in conjunction with the Mental Diversity Law Network (MDLN). The MDLN is an interdisciplinary network of approximately 200 people with academic, professional and/or lived experience of mental differences or difficulties, caregivers and other stakeholders with an interest in the law as it relates to mental diversity.

The event will bring together a range of academics, practitioners, individuals with lived experience and others to discuss the role of mental capacity law in helping individuals to manage their property and finances. The event will consider a wide range of issues, including the capacity to contract, capacity to make a will, supported decision-making and safeguards to protect against financial abuse.

The event will consist of two panels.

The first will discuss the role of support in managing property and finances, including issues that arise under the United Nations Convention on the Rights of Persons with Disabilities. This may include practical barriers individuals face, access to documentation and general accessibility of support and benefit services, as well as what legal responses can be operationalised to better secure support. Speakers on this panel include Clíona de Bhailís from the National University of Ireland, Galway, Professor Rosie Harding of the University of Birmingham, and Support Workers from Outside Interventions, Shonaid and Andy.

The second panel will discuss the role of mental capacity law in England and Wales in this area and include three speakers. John Howard, a lawyer in the Property and Affairs Team of the Official Solicitor and Public Trustee; Gareth Ledsham, Partner at Russell Cooke; and Her Honour Judge Hilder Senior Judge of the Court of Protection.

This free event will be held Wednesday 5 October 13:00 – 17:00 at Wivenhoe House Hotel, Colchester, as well as online via Zoom. Please register in advance here. The organisers welcome questions and interaction from audience members and any queries about the event can be directed to Dr Jaime Lindsey at j.t.lindsey@essex.ac.uk.

Capabilities, Capacity and Consent: Sexual Intimacy in the Court of Protection

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Dr. Jaime Lindsey, Lecturer in Law at the University of Essex has a new article published in the Journal of Law and Society. The article is entitled ‘Capabilities, capacity, and consent: sexual intimacy in the Court of Protection’ and is co-authored with Professor Rosie Harding of the Birmingham Law School.

The article uses original data from research at the Court of Protection to explore capacity to consent to sex in practice. It argues that the approach under the Mental Capacity Act 2005 fails to place appropriate focus on consent as central to understanding sexual capacity.

The capabilities approach to justice is then used to demonstrate the limitations of the existing legal approach to capacity to consent to sex, and to argue that the protective focus of the legal test would be better centred on the social risks resulting from non‐consensual sex and exploitation.

Finally, the article argues that, rather than focusing on a medicalized approach to understanding sexual intimacy, an analysis based on capabilities theory provides conceptual tools to support arguments for additional resources to help disabled people to realize their rights to sexual intimacy.

The article is published Open Access and is available here.

Protecting Vulnerable Adults from Abuse: New Publication

Photo by Külli Kittus

Dr. Jaime Lindsey, Lecturer in Law, University of Essex

Dr. Jaime Lindsey recently published an article in Child and Family Law Quarterly (Volume 32, Issue 2, pp. 157-176), titled ‘Protecting vulnerable adults from abuse: under-protection and over-protection in adult safeguarding and mental capacity law’.

The article concerns the intersection between adult safeguarding and mental capacity law; an area which raises a number of difficult issues for lawyers, policy makers and health and social care professionals when thinking about the extent to which the civil law ought to be used to respond to abuse of adults with impaired mental capacity.

The article draws on original empirical data to show that adults vulnerable to abuse are left under-protected in some cases and over-protected in others. In particular, it argues that the Mental Capacity Act 2005 has become a tool for protecting vulnerable adults from abuse. Moreover, this is done in ways that restrict and control the vulnerable victim, rather than targeting the perpetrator.

Learning from developments in the domestic abuse sphere, including the Domestic Abuse Bill currently going through Parliament, Dr. Lindsey argues that safeguarding adults law should instead focus on perpetrators of abuse by developing a Safeguarding Adults Protection Order (SAPO), instead of resorting to mental capacity law in these challenging cases.

The article is available on LexisLibrary and a copy can be requested via the University’s Research Repository here.